Key Tronic Corp. v. United States, 511 U.S. 809, 14 (1994)

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822

KEY TRONIC CORP. v. UNITED STATES

Scalia, J., dissenting in part

"enforcement activit[y]" he can conceivably conduct. Obviously, attorney's fees will constitute the major portion of those enforcement costs.

The Court seeks to characterize the right of recovery created by 107 as an "implied" right of action, see ante, at 816, 818, and n. 11—perhaps in order to support the view that the authorization of attorney's fees included within that right of action is not explicit (a point I shall discuss more fully below). That characterization is mistaken. Section 107(a)(4)(B) states, as clearly as can be, that "[c]overed persons . . . shall be liable for . . . necessary costs of response incurred by any other person." Surely to say that A shall be liable to B is the express creation of a right of action.* Moreover, other language in 107 of CERCLA refers to "amounts recoverable in an action under this section," 42 U. S. C. 9607(a)(4)(D), and language in 113 discusses the "civil action . . . under section 9607(a) [i. e., 107(a) of CERCLA]," 42 U. S. C. 9613(f)(1). The Court's assumption seems to be that only a statute that uses the very term "cause of action" can create an "express" cause of action, and that all other causes of action are "implied." That is not ordinary usage. An implied cause of action is something quite different from what we have here. See, e. g., Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A., ante, at 171 (discussing the genesis of the implied private causes of action under 10(b) and 14(a) of the Securities and Exchange Act of 1934).

*I cannot agree with Justice Stevens's contention that CERCLA "expressly identifies the Government as a potential plaintiff and only impliedly identifies private parties" as potential plaintiffs in 107 litigation. Ante, at 818, n. 11. Section 107(a)(4)(A) states that persons are liable for certain costs "incurred by the United States Government or a State or an Indian Tribe," thus providing an express cause of action for those plaintiffs. Section 107(a)(4)(B) states that persons are liable for certain costs "incurred by any other person" (emphasis added), thus providing an express cause of action for private parties.

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